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Ahhhh! Winter! That magical time when fresh snow makes everything look clean for a moment, we're all taken back to childhood memories of carefree snow days , and…oh, yeah, the time of year when people fall on icy surfaces and get hurt. As we are approaching that season, it is fitting that the Appellate Division, Second Dept. issued a new decision involving just such an accident, which happened in the neighborhood nextdoor to mine. In Groninger v. Village of Mamaroneck , NY Slip Op 08178 (2d Dept. 2009), decided November 10, 2009, plaintiff slipped, fell and injured herself on ice in one of the Village's municipal parking lots. When she sued the Village, claiming that it had negligently failed to address the icy condition responsible for her accident, the Village move for summary judgment dismissal, based on the lack of prior written notice mandated by CPLR 9804 and the Village Law.

In affirming the lower court's granting of the Village's motion to dismiss, the Second Dept. found that the prior written notice requirement applied to municipal parking lots, and that plaintiff failed to show the applicability of either of two exceptions to the written notice requirement: (1) that the Village affirmatively created the condition through negligence that immediately resulted in danger; or (2) that a special use resulted in a special benefit to the Village.

Because she could not defeat the prior written notice requirement, Ms. Groninger's case was dismissed.

The plaintiff fared better in Bastien v. New York City Transit Authority , Slip Op 08167 (2d Dept. 2009), also decided November 10, 2009. He was beaten and stabbed while riding a City bus, and later brought a negligence action against the NYCTA and the driver, who did nothing to help plaintiff during the assault, failing to even call for help. Defendants moved for summary judgment dismissal, establishing their prima facie entitlement to judgment as a matter of law, by showing that there was no special relationship to plaintiff. However, only a “triable issue of fact” is needed to defeat such a motion, and plaintiff had an effective one in his quiver. He argued that the bus operator's failure to call for emergency assistance in a timely manner from his position of safety was a proximate cause of his injuries. The lower court found that plaintiff's argument did indeed raise a triable issue of fact, and noted that if plaintiff were to prove such a scenario, he could recover for his injuries under an exception to the special relationship requirement.

The lower court properly denied the defendants' summary judgment motion, as the Second Dept. affirmed, and Mr. Bastien will be able to take his case to trial.

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About the Author

Mr. Barovick is a graduate of Columbia College and Cardozo School of Law. He began his legal career at the Queens District Attorney’s Office, where he tried over 20 felonies to verdict, and argued an equal number of appeals before the Appellate Division, Second Department, the New York Court of Appeals and the United States Court of Appeals for the Second Circuit.

• $250,000 to young man whose physician failed to diagnose an impending torsion testicle, causing the loss of the affected testicle.

• $200,000 to young mother whose OB/GYN failed to timely diagnose and treat her ectopic pregnancy, resulting in excruciating, long-term pain and the need for surgery to address the ectopic pregnancy once it was diagnosed.

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